I would add that we would really like to see mandatory screening for family violence “by any legal adviser”, as I think is the term in the bill.

It's not possible to know just by looking at a client whether they have been a victim of domestic violence. Many survivors of that violence do not disclose that information until they're asked. They're afraid to. They're afraid the lawyer won't believe them, or they're afraid there may be repercussions from their abusive spouse. They're ashamed, they're embarrassed or they're worried that we as their lawyers may judge them for that.

The use of a standardized screening tool, a mandatory screening tool, would be extremely helpful. It would then guide the discussion from that point on, and as both my colleagues have said, it in no way takes alternative dispute resolution off the table. It just doesn't preference it in the way the bill currently does.

In terms of a screening tool, I agree entirely. Actually the federal government, the Department of Justice and the CBA are working on exactly that and will shortly come out with a tool that will be recommended across the board.

I agree with my friends who talked about family violence being mostly against women. There is some against men, and it comes in different forms.

I would just add a couple of things to that. When you're funding things, there is no question survivors of abuse have to be funded for a wide variety of services, but from the perspective of the child—unbelievably maybe—they still want a relationship with both parents. As well, that abuser—I shouldn't say “he” but it's predominantly “he”—also needs to be counselled. There need to be funds for that, to make the family whole. It's very important.

I would just add one other thing in terms of the FDR—the other FDR—which is this: When I said we should add mediation and arbitration, I meant that it should be in accordance with Canadian law. What we shouldn't have are mediation and arbitration done by religious authorities of one stripe or another. That would perpetuate inequality and other problems. It should be in accordance with Canadian law. I should have said that before. I apologize.

In the brief, Ms. Beavers, you talk about making amendments to the day-to-day decisions and how they're made. You recommend taking out the phrase “has exclusive authority to” and replacing it with “may, subject to compliance with best interests of the child principles, make decisions”, set out in the act.

Do you think the impact of this would be to create uncertainty? Would it actually increase conflict between parents as they try to parent? Would they undermine each other because the language is no longer as clear?

The reason that we've asked for that change is to centre the best interests of the child again in all the considerations. One of the things that we have put forward in the brief is that keeping women safe, keeping mothers safe is also in the best interests of the child. We have put in some additional language to ensure that different areas of decision-making cannot be used to try to undermine the decision-making of the parent with primary decision-making. We've clarified it. We've given a set of criteria or a set of decisions that should be very clear that these rest with the parent with decision-making authority, and that the day-to-day bits and bites that go to the other parent cannot in any way be used to undermine those. The only place in which we need to have an additional consideration is in the best interests of the child, and again this is in the context of family violence.

Mr. Pinsky, my first question is for you. In your brief, you addressed the issue of support payments. You said that the determination and settlement of support payments is a source of dispute and a cause of poverty. For example, you talked about the length of the legal process, which is very costly for the parties, and the fact that some people settle for less support than they should receive, in order to avoid conflict.

You proposed federal guidelines for child support and the Divorce Act to help determine the payments in situations where responsibilities are shared. You said that a basic framework and formula must be provided to promote stability and predictability in the best interests of the child, while reducing conflict, emotional harm and the resulting financial burden.

Even if we manage to put in place the fair, proportional, easily understood and easily implemented mechanism that you're recommending, do you really think that this mechanism will help achieve the objective that the bill claims to achieve, which is to reduce poverty?

The people from the department said that the bill would reduce poverty. However, I'm wondering about the families who can't afford these payments. I asked the representatives of the Barreau du Québec the same question, given that we have a somewhat similar system in Quebec.

There are a number of issues that you raised in that question. The Supreme Court has commented about the feminization of poverty, and historically I don't think there's any doubt about that.

The interesting thing is that in Manitoba, we have a symposium every year from the courts—the bar and the bench—and one year we did it on spousal support. We commissioned a study because we see a different reality today—this was a few years ago—from what we have seen historically. More fathers—let's call a spade a spade—are involved in parenting than they used to be.

The government just came out with certain benefits for both parents for parental leave. We asked the question of whether we are still seeing a feminization of poverty. The answer, surprisingly to me a little bit, was yes. I thought we'd attained a higher level of equality. Apparently that isn't the case.

What we did learn, though, was that it has decreased. I think that in the light of government initiatives and society's evolution, you're going to see a change. One of the key criteria is child care. That leads to poverty, to impoverishment, largely of women, who have been the primary parent.

Do you know what Sweden has for spousal support? Nothing. Zero. They don't have the concept. Do you know what Scotland has for spousal support? They have a maximum of three years. If you're married for 30 years in Scotland, it's three years. That's what you get. Interesting. Do we know this? No, we don't generally know this. I know it because I'm a fellow of the International Academy of Family Lawyers, so we look at other jurisdictions and what happens out there. It's really interesting that this is the case. However, in Sweden, of course, they have great child care for both parents, which we don't have as much. I'm not criticizing anything, although you may take it the way that you choose.

The point is that as more fathers or other parents stay home to help raise the children, I predict you'll see a decrease in the feminization of poverty. It's a long-term prospect, and we're seeing it beginning and it should continue.

In terms of shared parenting child support, which is what I talked about in the letter to the minister and elsewhere, I think that's true. We need that, because people do fight. People can fight about everything, and in family law you see people at their worst. Family violence, by the way, is a spectrum, and at the beginning of a breakdown of a marriage or a relationship, people sometimes do stupid things. However, it's at the low end.

The point is that if we could reduce the fighting by having a predictable shared parenting formula, which hopefully the CBA, which I'm not speaking on behalf of, is going to work toward in the future.... We certainly will. We've talked historically to various ministers about that, and we will try to move that forward. I think it should help.

You shared some findings. Like many rights groups, you talked about all the myths surrounding domestic violence, which lead certain judges to react in ways that aren't necessarily appropriate. You provided examples.

I want to know whether Bill C-78 will really change the legal culture when it comes to the treatment of family violence?

I think Bill C-78, with the inclusions that we've proposed, will go a long way to changing that culture if a couple of things happen.

The first is that the mandatory screening, using an accepted tool that we've talked about, takes place. Also, you'll see in our brief that we've called for mandatory education of all actors in the family law system, to understand what family violence looks like, to break down those myths, to ensure that even inadvertently there isn't reliance on some of those myths and stereotypes in the context of divorce and beyond. We think that Bill C-78 can make some tangible advances towards substantive equality for women and children, but there are some adjustments that need to be made.

The other thing we will say is that funding for legal aid for support is absolutely necessary, and the education piece for all the actors involved in the family law system is really critical, in order for there to be any kind of systemic change in the way in which the family law system now operates.

I just want to endorse the point about education. We need to get the wording of the legislation right, but what we see in the research is that even when the wording's right, judges and others get it wrong because of a lack of understanding. Family violence is complicated. Education is absolutely critical at all levels and really needs to happen.

I can share with you that there's a meeting at the NJI, the National Judicial Institute, to create a mandatory family-justice education model for judges. Every superior court judge is going to have to go through it. That's starting next week, I think.

Allow me to first thank each one of you for your very helpful testimony.

The first question I have is very general. Last time when we had witnesses, one of them flagged the concern that new terminology adopted in this particular bill could cause problems because the Hague convention obviously would not be using the same terminology. In your opinions, would that be a challenge? Is that something that we should be concerned about?

It would be a challenge. I don't think it's an insurmountable challenge, but I think it's something that speaks to a number of the points that were made briefly a minute or two ago.

First of all, there needs to be a period of time to ensure that other legislation, not just international conventions but provincial legislation.... For instance, Ontario, which is where I work, uses the language of custody and access. What's going to happen if I have one client who's using the Divorce Act to seek her parenting arrangements and has an order that talks about parenting time and decision-making responsibility, and I have another client who's using provincial legislation? It's going to be confusing for people.

We have to rationalize it internally within Canada, but we certainly also have to look at the impact on international laws, where there may be inconsistency in language.

Bear in mind that right now, as I mentioned earlier, we have this inordinately high rate of unrepresented parties in family court. Asking them to understand this term.... Whether people really know what it means or not, they know the word “custody” and the word “access”. Now all of a sudden they're reading something that says, “parenting time” and what on earth does that mean? They don't have a legal adviser to turn to, because their legal aid doesn't cover them, and so on.

We have to address public education around the language. As my colleague has said, we need to look at proper funding for legal aid programs across the country. We have to work with our international partners on things like the Hague convention. It's not insurmountable, but it's a huge amount of work.

I tend to disagree with parts and agree vehemently with other parts of what my friend said.

I don't think it will be a problem with any of the Hagues. We certainly canvassed that with the Department of Justice before we raised the very issue. We were assured that wasn't the case. We've spoken to experts on Hague. It's a unique little area of the law, and the general consensus was that it wouldn't be a problem.

I am completely supportive of the notion of education broadly. On the idea of changing to “parenting time”, people don't know now what “custody” means. They have no idea. They come in and say, “I want custody.” What does that mean? They describe a different type of regime. The truth is, if my wife and I were separated, she could have sole custody and I could have access 24 hours a day, seven days a week. What does it mean? Major decisions would be made in a different way, but really, they're empty boxes.

The idea of reducing conflict by having parenting arrangements and what have you is a positive step forward, and I don't think it interferes with Hague.

The next question, again, is open to all of you. I was really intrigued by the idea of mandatory screening for family violence. Do we know of other jurisdictions that have actually introduced mandatory screening?